Recent legislative changes had a significant impact on the magistration process for justices of the peace. OCA has produced materials to assist stakeholders in understanding the changes made to jail screening and competency restoration processes for defendants that have a mental illness or intellectual or developmental disability. Training materials include a webinar, a PowerPoint that reviews the new jail screening and mental health procedures, flow charts for competency restoration and screening assessments, and a Q&A document with common questions regarding reporting.
Forms and Flow Charts
What is the process when a defendant in custody is believed to have a mental illness or intellectual disability?
OVERVIEW OF ART. 16.22 MENTAL HEALTH ASSESSMENT PROCESS
Art. 16.22 of the Code of Criminal Procedure provides for a protocol when a person who has been arrested shows signs of mental illness or intellectual disability.
The protocol generally provides that:
- The sheriff or jail gives a notice to the magistrate;
- The magistrate may order the local mental health authority to collect information and provide an assessment;
- The magistrate provides copies of the written assessment to the defense counsel, the prosecution and the trial court;
- The trial court may use the assessment for various purposes, including resuming criminal proceedings, resuming or initiating competency proceedings, in connection with the punishment phase after conviction, or referring the defendant to a specialty court.
In 2017, the Legislature passed SB 1849 (the Sandra Bland Act) and SB 1326 amending Art. 16.22. These amendments:
- Shorten the time periods for the notice by the jail and for completing the assessment;
- Make it easier for a defendant with a mental illness or intellectual disability to be released on a personal bond;
- Require law enforcement to divert person suffering a mental health crisis or from the effects of substance abuse to treatment; and
- Require independent law enforcement agencies to investigate jail deaths.
STEP BY STEP PROCESS
Here is how the process now works with respect to magistration:
STEP 1: If a sheriff or municipal jailer receives credible information that may establish reasonable cause to believe that a defendant charged with a Class B misdemeanor or higher offense has a mental illness or intellectual disability, then the sheriff or jailer must provide a written or electronic notice to the magistrate. This must be done within 12 hours of receiving the credible information and the notice must include information related to the sheriff’s or jailer’s determination.
STEP 2: If the magistrate determines that there is reasonable cause to believe that the defendant has a mental illness or intellectual disability, then the magistrate must order the local mental health authority, local intellectual and developmental disability authority or another qualified expert, to collect information and provide a written assessment to the magistrate.
- However: the magistrate is not required to order the assessment if the defendant has been determined to have a mental illness or intellectual disability in the year preceding the defendant’s date of arrest.
- If the defendant fails or refuses to submit to the collection of information, the magistrate may order the defendant to submit to an examination in a jail or in another place for a reasonable period not to exceed 72 hours.
STEP 3: Except as permitted by the magistrate for good cause, the written assessment must be provided to the magistrate:
- Not later than 96 hours after the magistrate ordered the assessment if the defendant is held in custody; or
- Not later than the 30th day after the order was issued for a defendant released from custody.
The written assessment must include the expert’s observations and findings pertaining to:
- Whether the defendant has a mental illness or intellectual disability;
- Whether there is clinical evidence to support a finding that the defendant may be incompetent to stand trial; and
- Any appropriate or recommended treatment or service.
STEP 4: The magistrate must provide copies of the assessment to the defense counsel, the attorney representing the state and the trial court.
REPORTS NOT REQUIRED
The statute says the magistrate must submit to OCA on a monthly basis the number of written assessments provided to the court under Art. 16.22. However, OCA has said you do NOT have to do this!
OCA states: “The magistrate should send the assessment to the custodian of the district or county court records—the district clerk or county clerk—for inclusion in the defendant’s case file. The number of written assessments will be captured from district and county courts on Judicial Council Monthly District and County Court Activity Reports, submitted by district clerks and county clerks.”
Therefore, OCA is saying you do not have to report these assessments directly to OCA; they will tally the number of assessments each month from the reports submitted to them by the district and county clerks.